1. The author of the
communication is Clifford McLawrence, a Jamaican citizen currently awaiting
execution at St. Catherine District Prison, Spanish Town, Jamaica. He claims
to be a victim of violations by Jamaica of articles 6, 7, 9, paragraphs 1 to
4, 10, paragraphs 1 and 2, 14, paragraphs 1, 3 (a), (b), (c), (d) and (e),
and 5, and 17, of the International Covenant on Civil and Political Rights.
Initially, the author was represented by counsel. After submitting his
initial communication on 26 April 1996, the author discharged the
London-based law firm which had initially agreed to represent him; another
London-based law firm agreed to take over his representation, but the author
subsequently also discharged that firm.

THE FACTS AS SUBMITTED

2.1 The author was charged
with the murder of Hope Reid on 8 July 1991 in the Parish of St. Andrews. He
was tried in the Home Circuit Court in Kingston, Jamaica, from 9 to 25
November 1992, found guilty as charged and sentenced to death on 25 November
1992. Under the Offenses against the Person (Amendment) Act of 1992, the
author is classified as a capital offender. He applied for leave to appeal
on 30 November 1992; the Court of Appeal of Jamaica heard his appeal from 14
to 17 March 1995 and dismissed it on 26 June 1995. The author then filed a
petition for special leave to appeal with the Judicial Committee of the
Privy Council; the Judicial Committee heard the petition on 28 March 1996
and dismissed it without giving reasons. With this, it is submitted,
available domestic remedies are exhausted.

2.2 Ms. Reid, a 36-year
old banker, was strangled by an electrical cord during the night of 7 to 8
July 1991; she was found by her maid shortly before 7 a.m. on 8 July. Her
husband and children were abroad at the time. A television set and video had
disappeared from the house; the family car had also been stolen when her
body was found.

2.3 During the trial, the
prosecution relied primarily on three sources of evidence: (a) the evidence
of two individuals who had been found in possession of the stolen goods from
the victim's house, and who claimed that they had received them from the
author. The two were separately charged with receiving stolen goods, but
charges were dropped in return for their testifying for the prosecution
during the trial; (b) a confession statement which allegedly had been given
and signed by Mr. McLawrence; and (c) fingerprint evidence which allegedly
had been taken from a surge protector in the victim's home, and which
allegedly matched the author's fingerprints. The case for the defence was
that the author had made no confession statement, nor any statement
whatsoever; rather, the defence argued, the confession statement was likely
to have been made by another individual, one Horace Beckford, who had been
arrested by the police on the day following the murder but had been released
without charge.

2.4 The author complains
that by failing to give his legal representative an opportunity to
cross-examine Horace Beckford or to put the earlier statement Beckford made
into evidence, a crucial part of the defence's case was removed.
Furthermore, although he consistently denied having made a confession
statement, it was clear from the jury's guilty verdict, reached after only
seven minutes of deliberations, that they believed that the statement was
his own. Since the author claims to have been subjected to police violence
at the time the statement was supposed to have been made, he submits that
the trial judge should have considered the voluntary nature of the
confession and ruled on its admissibility. In addition, he argues that two
potential alibi witnesses were not called to give evidence.

2.5 For the appeal,
author's counsel filed numerous grounds of appeal. The most important ones,
invoked by the author himself in his written communications to the
Committee, were that the trial judge had been wrong that the authenticity of
the (alleged) signed confession statement was a question of fact for the
jury. Counsel contended that since Mr. McLawrence claimed that he was
subjected to police beatings at the time when the statement was made
according to the prosecution, the question of voluntariness was a live issue
to be determined by the judge. Furthermore, counsel claimed that the judge
did not warn the jury of the dangers in making comparisons of fingerprint
evidence, in the light of the incomplete nature of this evidence.

2.6 The Court of Appeal
dismissed the appeal on the basis that the trial judge was not wrong in
terminating a voir dire called to consider the voluntariness of the alleged
confession statement, since the accused had clearly indicated that he had
never made a statement and that, therefore, the question of voluntariness
did not arise and the question of authenticity of the statement was an issue
of fact for the jury to decide. It also considered that the judge gave
correct directions to the jury on how they were to treat fingerprint
evidence.

2.7 Finally, before the
Judicial Committee of the Privy Council, the principal grounds of appeal
were that the trial judge had been wrong to terminate the voir dire that had
been called, and that he should have made a ruling on the admissibility of
the author's alleged confession. Without giving reasons, the Privy Council
dismissed the appeal.

THE COMPLAINT

3.1 The author alleges a
violation of article 7 of the Covenant, on account of the length of his
detention on death row since 25 November 1992, adducing, inter alia, the
"appalling conditions suffered by detainees in the death row section of St.
Catherine District Prison". He invokes judgements of the Judicial Committee
of the Privy Council Earl Pratt and Ivan Morgan v. Attorney General of
Jamaica and Another, judgment of 2 November 1993. and of the Supreme Court
of Zimbabwe Catholic Commission for Justice and Peace in Zimbabwe v.
Attorney General for Zimbabwe et al., Supreme Court of Zimbabwe, judgment of
24 June 1993. in support of his argument.

3.2 The author claims a
violation of article 9, paragraph 1, because, when he was arrested, the
three principal sources of evidence relied upon by the prosecution during
the trial were not yet available to it: accordingly, the arrest must be
considered arbitrary. He further contends that article 9, paragraph 2, was
breached, since he was given no reasons for his arrest and was not
cautioned. He further contends that the first time he was apprised of the
reasons for his arrest was approximately three weeks after the arrest, when
being taken to the preliminary hearing. The latter argument was filed in a
supplementary submission of 25 September 1996.

3.3 It is submitted that
Clifford McLawrence is a victim of violations of article 9, paragraphs 3 and
4, because of the delays in bringing him before a judge or judicial officer.
In this context, the author provides the following chronology:

- On Saturday, 13 July 1991, the
day of his arrest, the author was taken immediately to Constance Spring
Police Station, where he was held for 45-60 minutes;

- On the same day, he was taken
to the remand centre at Rema: according to him, the police took the decision
to send him to Rema on its own, without consulting a judge;

- On Tuesday, 16 July 1991, he
was taken from the remand centre to the Central Police Station in Kingston.
He was held there for one day, during which he was questioned about a
murder;

- Thereafter, the author was
returned to the remand centre at Rema, where he was detained for several
weeks. He first appeared before a judge on 20 July 1991; on the third court
appearance (the author does not remember the exact date), the judge ordered
him transferred to the General Penitentiary.

3.4 The author contends
that he was not informed at any time after his arrest of his right to legal
representation or to apply for a writ of habeas corpus.

3.5 The author alleges
violations of articles 7 and 10, paragraph 1, since, after being brought to
the Constance Spring Police Station, he was handcuffed to the side of an
iron chair and subjected to blows to the head, body and soles of his feet
with an iron bar, a sheet of aluminium metal and a large book. As a result,
his feet swelled up and he could not walk properly or put on shoes. He
claims that police officers applied electric shocks to his testicles and
other parts of the body, and that he was subject to verbal abuse and
harassment, with some officers threatening to shoot him.

3.6 According to the
author, the proceedings before the Home Circuit Court were contrary to
article 14, paragraph 1, in that despite repeated and continued attempts to
locate Horace Beckford, considered to be a crucial witness, the latter was
unavailable to attend trial. In his absence, author's counsel was prevented
by the judge from submitting documentary evidence to prove that Mr. Beckford
had himself been arrested shortly before the author himself. It is submitted
that, given the absence of this crucial witness, Mr. McLawrence could not
have a fair trial.

3.7 As to alleged breach
of article 14, paragraph 3 (a), the author indicates that he was never
formally apprised of the charges against him: he first learned about the
reasons for the arrest when he was taken to the first preliminary hearing.
He also contends that he did not know that the men who apprehended him were
policemen until he reached the police station. He contends that he did not
have access to a lawyer at any of his preliminary appearances in court, that
is, approximately 15 times before the start of his trial. The nature of
these court visits was to set a trial date and to keep him on remand. It was
only shortly prior to the commencement of the trial that he was given access
to a lawyer, and therefore this lawyer had no time to prepare the defence.
This claim submitted by author's counsel does not tally with one of the
author's handwritten letters to the Committee, in which he concedes that his
lawyer, a Queen's Counsel, represented him well on trial. Allegedly, the
lawyer only visited him after the start of the trial, on the second-to-last
day of the second week of the trial, after the author had already given
evidence; moreover, the duration of the visit was only 10 minutes. This is
said to be in violation of article 14, paragraph 3 (b). Similarly, the
author claims that the fact that two alibi witnesses he relied on as
evidence, namely his girlfriend and a friend, were not called to testify,
amounts to a violation of article 14, paragraph 3 (e).

3.8 The author contends
that he did not see a lawyer again after his conviction. He was not, for
example, able to consult with counsel about the appeal process and, although
he had expressly stated on the appeal form that he wished to be present
during the hearing of the appeal, was not informed of the date on which the
appeal was heard. He allegedly learned of the appeal's dismissal from the
press. This is said to constitute a violation of article 14, paragraphs 3
(d), and 5.

3.9 According to the
author, the length of his pre-trial detention -16 months - and the delay of
almost 31 months between his conviction and the dismissal of his appeal
constitute a violation of his right to be tried without undue delay, article
14, paragraph 3 (c).

3.10 Finally, the author
claims a violation of article 17, paragraph 1, of the Covenant, since his
correspondence was repeatedly and unlawfully interfered with by prison
guards, and letters sent to the prison office by him did not reach their
addressees.

THE STATE PARTY'S INFORMATION
AND OBSERVATIONS

4.1 In its submission of
15 July 1996, the State party does not object to the admissibility of the
communication and offers comments on the merits of the author's allegations.

4.2 The State party
rejects the contention that a period of detention of three and a half years
on death row constitutes a violation of article 7 of the Covenant. It notes
that the threshold set by the Judicial Committee of the Privy Council in the
Pratt and Morgan judgement of 2 November 1993 and denies that there are any
exceptional circumstances which would make the five-year limit inapplicable.

4.3 The State party denies
that there has been a breach of article 9, paragraph 1, on the basis that
Mr. McLawrence's arrest was without grounds or that he was arrested on
grounds which were never disclosed to him. It submits that, in order to
effect an arrest, "there needs to be enough evidence to reasonably show that
the person may have committed the offence. The fact that other evidence
later became available and could be relied upon by the prosecution at trial
does not mean that the original arrest was baseless". Furthermore, the State
party indicates that, as far as the alleged breach of article 9, paragraph
2, is concerned, the author should provide evidence that he had no idea of
the reasons for his arrest.

4.4 As to the alleged
breaches of articles 9, paragraphs 3 and 4, and 14, paragraph 3 (c), the
State party rejects the assertion that the 16-month delay between arrest and
trial constituted undue delay, as a preliminary hearing was held during that
time. Furthermore, while the 31-month delay between conviction and the
judgement of the Court of Appeal was "somewhat longer than is desirable",
this did not result in substantial injustice to the author.

4.5 The State party
emphatically rejects the allegation that article 10, paragraph 1, was
breached because the author was beaten upon his arrest and forced to sign a
confession statement. Firstly, there is no medical evidence or any other
evidence to support this allegation. Secondly, this matter was extensively
examined both during the trial and on appeal, where the author's assertions
were rejected. Since this matter has been fully evaluated by the Jamaican
courts, and given that there is no evidence in support of the author's
assertions, the State party contends that it is inappropriate for the
Committee to reopen this issue.

4.6 As regards the alleged
violation of article 14, paragraph 1, the State party notes that even the
author's representative concedes that strenuous but unsuccessful efforts
were made to locate Horace Beckford, a witness considered crucial. That this
witness could not give evidence and that the defence could not challenge his
credibility do not amount to circumstances which breached the author's right
to a fair trial. Furthermore, "in the absence of detailed information", the
State party rejects that there has been a violation of article 14, paragraph
3 (b).

4.7 The State party
categorically denies that the author was not informed of his right to legal
representation during his first and second court appearances. As to his
presence at the hearing of the appeal, the State party notes that the
convicted person is generally not present during the appeal hearing.
Furthermore, the Registrar of the Court of Appeal regularly dispatches
notices about the date of the hearing of an appeal to all appellants: the
State party contends that the author did receive this notice and thus was
aware of the date of his appeal.

4.8 Concerning the
violation of article 14, paragraph 3 (e), because two potential alibi
witnesses for the author were not called during the trial, the State party
notes that this breach cannot be attributed to it, without clear evidence
that the State party somehow obstructed the attendance of these witnesses at
a trial.

4.9 The State party denies
a breach of article 14, paragraph 5, since several grounds of appeal were
filed on Mr. McLawrence's behalf and the appeal was in fact heard over a
full three-day period by the Court of Appeal.

4.10 Finally, the State
party notes that the author's blanket assertion that his mail was interfered
with by prison guards is not enough to support a finding of a violation of
article 17. Indeed, that letters mailed from the prison may not have reached
their intended destination could well be attributed to factors other than
deliberate interference with correspondence.

EXAMINATION OF THE MERITS

5.1 The Committee notes
that the State party, in its submission of 15 July 1996, does not contest
the admissibility of the communication. It has examined whether the
communication meets all the admissibility requirements under the Optional
Protocol. In respect of the author's complaint that the prison authorities
arbitrarily interfered with his correspondence, in violation of article 17
of the Covenant, the Committee considers that the author has failed to
substantiate his claim, for purposes of admissibility. This aspect of the
communication is accordingly inadmissible under article 2 of the Optional
Protocol.

5.2 As to the other claims
of the author, the Committee concludes that they are admissible and
therefore proceeds directly with the examination of the merits of these
claims. It has examined the present communication in the light of all the
information made available by the author, his former counsel and the State
party, as provided for under article 5, paragraph 1, of the Optional
Protocol.

5.3 The author has alleged
a violation of article 7, on account of his prolonged detention on death
row, which at the time of submission of the communication was three years
and five months. The Committee reiterates that prolonged detention on death
row does not per se amount to a violation of article 7 of the Covenant in
the absence of further compelling circumstances. No such further
circumstances, over and above the length of detention, are discernible in
the instant case; accordingly, there has been no violation of article 7 on
this count.

5.4 The author complains
about beatings and treatment in violation of articles 7 and 10, paragraph 1,
at the hand of police officers following his arrest; the State party has
rejected this allegation. The Committee notes that the incidents invoked by
the author were considered in detail by the court of first instance and the
Court of Appeal. No material has been produced to show that the evaluation
of the evidence by these instances was arbitrary or amounted to a denial of
justice. The Committee therefore finds no violation of articles 7 and 10,
paragraph 1.

5.5 As to the claim that
article 9, paragraph 1, was breached because the author's arrest warrant did
not feature the three principal sources of evidence later relied upon by the
prosecution, the Committee recalls that the principle of legality is
violated if an individual is arrested or detained on grounds which are not
clearly established in domestic legislation. There is no indication, in the
instant case, that Mr. McLawrence was arrested on grounds not established by
law. He has argued, however, that he was not promptly informed of the
reasons for his arrest, in violation of article 9, paragraph 2. The State
party has refuted this claim in general terms, in that the author must show
that he did not know the reasons for his arrest; it is, however, not
sufficient for the State party simply to reject the author's allegations as
unsubstantiated or untrue. In the absence of any State party information to
the effect that the author was promptly informed of the reasons for his
arrest, the Committee must rely on Mr. McLawrence's statement that he was
only apprised of the charges for his arrest when he was first taken to the
preliminary hearing, which was almost three weeks after the arrest. This
delay is incompatible with article 9, paragraph 2.

5.6 Concerning the alleged
violation of article 9, paragraph 3, it is apparent that the author was
first brought before a judge or other officer authorized to exercise
judicial power on 20 July 1991, i.e. one week after being taken into
custody. The State party has not addressed the allegations under article 9,
paragraphs 3 and 4, but rather situated them in the context of delays in the
trial process. While the meaning of the term "promptly" in article 9,
paragraph 3, must be determined on a case-by-case basis, the Committee
recalls its General Comment on article 9 General Comment 8 [16] of 27 July
1982, para. 2. and its jurisprudence under the Optional Protocol, pursuant
to which delays should not exceed a few days. See Views on communication No.
373/1989 (Lennon Stephens v. Jamaica), adopted 18 October 1995, para. 9.6. A
delay of one week in a capital case cannot be deemed compatible with article
9, paragraph 3. In the same context, the Committee considers that pre-trial
detention of over 16 months in the author's case constitutes, in the absence
of satisfactory explanations from the State party or other justification
discernible from the file, a violation of his right, under article 9,
paragraph 3, to be tried "within reasonable time" or to be released.

5.7 With respect to the
alleged violation of article 9, paragraph 4, it is uncontested that the
author did not himself apply for habeas corpus. He further claims that he
was never informed of this entitlement, and that he had no access to legal
representation during the preliminary enquiry. The State party categorically
maintains that he was informed of his right to legal representation on the
occasion of his first court appearances. On the basis of the material before
it, the Committee considers that the author could have requested a review of
the lawfulness of his detention when he was taken to the preliminary hearing
in his case, where he was informed of the reasons for his arrest. It cannot,
therefore, be concluded that Mr. McLawrence was denied the opportunity to
have the lawfulness of his detention reviewed in court without delay.

5.8 The author has claimed
a violation of article 14, paragraph 1, since a witness deemed to be
crucial, Horace Beckford, was unavailable at trial, and because the judge
failed to make a ruling on the voluntariness of the alleged confession
statement and gave inadequate directions on the admissibility of fingerprint
evidence. The right to a fair trial before an independent and impartial
tribunal does not encompass an absolute right to have a certain witness
testify in court on trial; it may not necessarily amount to a violation of
due process if all possible steps are taken, unsuccessfully, to secure the
presence of a witness in court, though this may depend on the nature of the
evidence. In the instant case, counsel concedes that "repeated efforts" were
made to secure the attendance of Horace Beckford. As to the issue of the
voluntariness of the alleged confession statement and the admissibility of
fingerprint evidence, the Committee recalls that it is generally for the
appellate courts of States parties to the Covenant to evaluate all the facts
and evidence in a given case. It is not for the Committee to question the
evaluation of such evidence by the courts unless it can be ascertained that
the evaluation was arbitrary or otherwise amounted to a denial of justice;
neither is discernible in the present case. The Committee does not consider
that the author has established a violation of article 14, paragraph 1.

5.9 Article 14, paragraph
3 (a), of the Covenant gives the right to everyone charged with a criminal
offence to be informed "promptly and in detail ... of the charge against
him". Mr. McLawrence contends that he was never formally informed of the
charges against him, and that he first knew of the reasons for his arrest
when he was taken to the preliminary hearing. The Committee notes that the
duty to inform the accused under article 14, paragraph 3 (a), is more
precise than that for arrested persons under article 9, paragraph 2. So long
as article 9, paragraph 3, is complied with, the details of the nature and
cause of the charge need not necessarily be provided to an accused person
immediately upon arrest. On the basis of the information before it, the
Committee concludes that there has been no violation of article 14,
paragraph 3 (a).

5.10 The right of an accused
person to have adequate time and facilities for the preparation of his
defence is an important aspect of the guarantee of a fair trial and an
important aspect of the principle of equality of arms. Where a capital
sentence may be pronounced on the accused, sufficient time must be granted
to the accused and his counsel to prepare the trial defence. The
determination of what constitutes adequate time requires an assessment of
the individual circumstances of each case. The author also contends that he
was unable to obtain the attendance of two potential alibi witnesses. The
Committee notes, however, that the material before it does not reveal that
either counsel or the author complained to the trial judge that the time for
the preparation of the defence had been inadequate. If counsel or the author
felt that they were inadequately prepared, it was incumbent upon them to
request an adjournment. Furthermore, there are inconsistencies in the
author's own version of this issue: whereas, in communications to his
representative before the Committee, he claims that his trial lawyer had no
time to prepare the defence, he argues, in a letter to the Committee dated 1
October 1996, that his representation on trial had been "excellent".
Finally, there is no indication that counsel's decision not to call two
potential alibi witnesses was not based on the exercise of his professional
judgement or that, if a request to call the two witnesses to testify had
been made, the judge would have disallowed it. Accordingly, there is no
basis for finding a violation of article 14, paragraph 3 (b) and (e).

5.11 The author has claimed
violations of article 14, paragraphs 3 (c) and 5, on account of "undue
delays" of the criminal proceedings in his case. The Committee notes that
the State party itself admits that a delay of 31 months between trial and
dismissal of the appeal is "longer than is desirable", but does not
otherwise justify this delay. In the circumstances, the Committee concludes
that a delay of 31 months between conviction and appeal constitutes a
violation of the author's right, under article 14, paragraph 3 (c), to have
his proceedings conducted without undue delay. The Committee observes that
in the absence of any State party justification, this finding would be made
in similar circumstances in other cases.

5.12 Concerning the adequacy
of the author's legal representation, on trial and on appeal, the Committee
recalls that legal representation must be made available to individuals
facing a capital sentence. In the present case, it is uncontested that Mr.
McLawrence was unrepresented during his initial court appearances, although
the State party maintains that he was informed of his right to legal
assistance on those occasions. On the other hand, he did secure legal
representation thereafter, and on his own admission was represented
satisfactorily during the trial. Concerning the appeal, the Committee notes
that the appeal form dated 30 November 1992 indicates that the author did
not wish the Court of Appeal assign him legal aid, that he had the means of
securing legal representation for himself and that he gave the names of the
two lawyers who had represented him on trial. The author did initially
indicate the desire to be present during the hearing of the appeal. However,
he was represented at the appeal hearing, and it is not clear from the
material before the Committee whether the author continued to insist, in
March 1995, to be present during the hearing of the appeal. In the
circumstances of the case, the Committee is not in a position to make any
finding on article 14, paragraph 3 (d).

5.13 The Committee considers
that the imposition of a sentence of death upon conclusion of a trial in
which the provisions of the Covenant have not been respected constitutes, if
no further appeal against the sentence is possible, a violation of article 6
of the Covenant. As the Committee noted in its General Comment 6 [16], the
provision that a sentence of death may be imposed only in accordance with
the law and not contrary to the provisions of the Covenant implies that "the
procedural guarantees therein prescribed must be observed, including the
right to a fair hearing by an independent tribunal, the presumption of
innocence, the minimum guarantees for the defence, and the right to review
of conviction and sentence by a higher tribunal". In this case, since the
final sentence of death was passed without due respect for the requirements
of article 14, the Committee must hold that there has also been a violation
of article 6 of the Covenant.

6. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose a violation of articles 9, paragraphs 2
and 3, and 14, paragraph 3 (c), and consequently of article 6, of the
Covenant.

7. The Committee is of
the view that Mr. McLawrence is entitled, under article 2, paragraph 3 (a),
of the Covenant, to an effective remedy, entailing commutation of the death
sentence.

8. Bearing in mind that,
by becoming a State party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has
been a violation of the Covenant or not and that, pursuant to article 2 of
the Covenant, the State party has undertaken to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized
in the Covenant and to provide an effective and enforceable remedy in case a
violation has been established, the Committee wishes to receive from the
State party, within 90 days, information about the measures taken to give
effect to the Committee's Views.